United States v. Graves

United States of America Plaintiff- Appelleev.Keith A. Graves, also known as Chris Woods Defendant-Appellant

Submitted: February 6, 2017

Appeal
from United States District Court for the District of North
Dakota - Bismarck

Before
LOKEN, COLLOTON, and KELLY, Circuit Judges.

PER
CURIAM.

After a
lengthy trial at which Keith A. Graves represented himself
with the help of stand-by counsel, a jury convicted Graves of
five counts of sex trafficking by force or coercion and two
counts of possession and distribution of methamphetamine.
See 18 U.S.C. §§ 1591(a), (b)(1); 21
U.S.C. §§ 841(a)(1), 844(a). The jury acquitted
Graves of four sex trafficking offenses. The district
court[1] sentenced him to 405 months in prison. On
appeal, represented by stand-by trial counsel, Graves argues
he was denied a fair trial when the government produced
voluminous discovery in a manner Graves could not effectively
access while in pretrial detention and use at trial, and the
district court denied his request for a continuance made on
the morning his long-delayed trial was scheduled to begin. We
affirm.

At his
arraignment on a superseding indictment, Graves told the
magistrate judge that he wanted to represent himself because
appointed counsel, an assistant federal public defender, was
"working together" with the prosecutor to violate
"my constitutional rights to a speedy trial." On
May 18, 2015, the district court held a hearing on
counsel's motion to withdraw. The court gave Graves a
lengthy warning about the dangers of self-representation;
Graves again said he wanted to represent himself. Finding
that he was mentally competent and made a knowing and
voluntary waiver of his right to counsel, the court allowed
him to proceed pro se and appointed stand-by
counsel.

At this
hearing, the court asked if Graves had access to the
government's discovery. The prosecutor advised that
extensive discovery had been provided on twenty-two disks
pursuant to a stipulated discovery order. Graves complained
that he did not have access to electronic discovery at the
detention facility in Rugby and no access to FBI interview
reports. The court directed the U.S. Marshals Service to
ensure there was a room with a computer at the Rugby facility
where Graves could look at the discovery "more than an
hour a day." Graves said, "I'll look at
everything every day until I go to trial, " and said he
would be ready for a mid-July trial.

At a
June 23, 2015 status conference, the prosecutor assured the
court, "We sent all the discovery out." Graves said
he had reviewed eight of the twenty-four CDs and complained
that he needed more time to prepare for trial because "I
can't get any paper copies of anything at all, " and
the laptop in Rugby "doesn't really play all the
programs." The court explained that it was standard
policy not to allow inmates in custody awaiting trial to have
paper copies of discovery that could "get in the wrong
hands." The court said this is why "most people
rely upon an attorney to accumulate that information and
conduct the investigation." The court granted Graves a
continuance, assured him "we can find another laptop
computer, and . . . set aside more time for you to look at
those images, " granted Graves's belated request for
an investigator, and advised Graves to consult with stand-by
counsel. On September 15, the court ordered Graves
transferred from the jail in Rugby to the Burleigh County
Detention Center in Bismarck, where he would be provided a
computer with appropriate software to aid in his review of
discovery.

At the
start of a pretrial conference on September 28, the court
noted trial was scheduled for two weeks beginning October 19
and discussed "how this trial is going to proceed."
The court instructed Graves to immediately contact stand-by
counsel, who would contact the clerk of court, if Graves had
problems reviewing discovery. Graves replied, "Well, so
far, Your Honor, I haven't been able to review it, "
and asked how he would be able to separate the information
and present it as exhibits. The court instructed the U.S.
Marshal to make sure Graves has "full access to a
laptop" at the Detention Center and said, if they cannot
do it, provide Graves a room at the federal courthouse where
he can sit all day and look at discovery. The court advised
Graves to work with stand-by counsel to develop trial
exhibits. Graves complained he had not been provided an
investigator. The court replied, "I never received any
letter from you requesting private investigator funds, "
awarded funds for an investigator, and instructed stand-by
counsel to help arrange interviews of persons Graves wanted
interviewed. Graves also complained that "some of these
discoveries disks . . . don't even work." The
prosecutor explained that, with electronic device discovery,
sometimes there is nothing to view.

On
October 19, before selecting the jury, the district court
gathered counsel and Graves to discuss the preliminary jury
instructions. Graves stated he had not reviewed all the
discovery, "and basically I'm unprepared to go
forward with trial." The court replied: "I had you
transported to Bismarck to eliminate all of these problems .
. . why didn't you bring these to my attention sometime
in the last three weeks? . . . I've made it crystal clear
that there would be no further continuances." After
lengthy complaints by Graves, the court observed:
"according to [Detention Center] records . . .
you've only used the computer over there seven hours in
the last three weeks. . . . and you haven't contacted me
to let me know that you've had any problems whatsoever
about the government's evidence and making sure that
you've seen it all and contemplated it all." After
confirming that the government had complied with its
discovery obligations, the court denied Graves a continuance.

The
lengthy trial transcript demonstrates that Graves made
considerable use of the government's discovery in
representing himself at trial, and that the district court
liberally allowed him to introduce discovery materials and
use them to impeach government witnesses.

On
appeal, Graves first argues that he was denied a fair trial
because the government did not produce over 6, 000 pages of
discovery in a timely manner and usable form that gave Graves
an opportunity to review discovery, investigate the case, and
work with stand-by counsel to subpoena witnesses and prepare
exhibits for trial. After careful review of the trial and
pretrial record, we disagree. There is no claim the
government failed to comply with its disclosure requirements
under Rules 16(a)(1)(A), (E), (F), or 26.2 of the Federal
Rules of Criminal Procedure.

Rule 16
does not address the form discovery must take, and the
"open discovery file" provided by the government in
this case allowed Graves access to material that was not
required by rule, statute, or the Constitution. Counsel
signed a stipulated discovery and protective order early in
the case that permitted the government to produce discovery
in digital format and denied Graves paper copies while
detained. Graves cites no authority requiring the government
to produce electronic discovery in a particular fashion.
See United States v. Warshak, 631 F.3d 266, 296 (6th
Cir. 2010). The district court made great effort to assure
that Graves had timely computer access to the discovery. It
granted a continuance, moved Graves to a detention facility
closer to the courthouse, and instructed the U.S. Marshals
Service to ensure the detention center provided Graves
adequate computer access, or to provide him a room at the
courthouse for that purpose. The record discloses that Graves
was provided a pretrial investigator, subpoenaed numerous
defense witnesses for trial, and made use of the
government's discovery at trial. Finally, and perhaps
most importantly, Graves provides no instances where lack of
access to specific discovery prejudiced his trial defense. In
these circumstances, we conclude the government did not deny
Graves his constitutional right to a fair trial, and the
district court did not abuse its discretion in responding to
his numerous discovery complaints.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Graves
next argues the district court abused its discretion in
denying his day-of-trial motion for another continuance. We
disfavor continuances, particularly on the eve of trial, and
will reverse only if the district court abused its broad
discretion and the moving party was prejudiced. See
United States v. Chahia, 544 F.3d 890, 896 (8th Cir.
2008). Here, the district court granted Graves a lengthy
continuance, told him to alert stand-by counsel immediately
if the court's efforts to resolve his discovery problems
were not working, and warned that no further continuances
would be granted. The court also again advised that Graves
was unwise to represent himself and said he could turn to his
well-prepared stand-by counsel to conduct the trial at any
time. Graves then appeared the morning of trial, advised the
court of myriad, previously undisclosed discovery complaints
that made him unprepared for trial, but admitted that he had
looked at discovery only seven hours the previous three
weeks. The court did not ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.